2011-25123. Environmental Justice; Proposed Circular

AGENCY:

Federal Transit Administration (FTA), DOT.

ACTION:

Notice of availability of proposed circular and request for comments.

SUMMARY:

The Federal Transit Administration (FTA) has placed in the docket and on its Web site, proposed guidance in the form of a Circular on incorporating environmental justice principles into plans, projects, and activities that receive funding from FTA. This proposed guidance provides recommendations to State Departments of Transportation, Metropolitan Planning Organizations, public transportation providers, and other recipients of FTA funds on how to fully engage environmental justice populations in the public transportation decisionmaking process; how to determine whether environmental justice populations would be subjected to disproportionately high and adverse human health or environmental effects as a result of a transportation plan, project, or activity; and how to avoid, minimize, or mitigate these effects. By this notice, FTA invites public comment on this proposed Circular.

DATES:

Comments must be submitted by December 2, 2011. Late-filed comments will be considered to the extent practicable.

Public Meetings: FTA and PolicyLink will co-sponsor a series of Information Sessions regarding FTA's proposed Environmental Justice Circular and proposed revisions to the Title VI Circular (see docket FTA-2011-0054 for more information on the proposed revisions to the Title VI Circular). The meetings listed below will provide a forum for FTA staff to make oral presentations about the two proposed Circulars and allow attendees an opportunity to ask clarifying questions. Additionally, the sessions are intended to encourage interested parties and stakeholders to submit their comments directly to the official docket per the instructions found in the ADDRESSES section of this notice.

These Information Sessions will take place as follows: Kansas City, MO on Tuesday, October 18, 2011 from 6-9 p.m.; Boston, MA on Tuesday, November 1, 2011 from 6-9 p.m.; Detroit, MI on Wednesday, November 9, 2011 from 6-9 p.m.; the San Francisco Bay Area on Monday, November 14, 2011 from 6-9 p.m.; and Atlanta, GA on Thursday, November 17, 2011 from 6-9 p.m.. All locations will be ADA- and transit-accessible.

For details about the exact location of each Information Session (i.e., site name and address), please visit http://www.fta.dot.gov/​FTAInformationSessions.

In consideration of the comfort and safety of all attendees and the maximum seating capacity of meeting rooms, FTA requests RSVPs for the Information Sessions. To RSVP, please visit http://www.FTAInformationSessions.com. At the same Web link, persons with disabilities may request a reasonable accommodation.

ADDRESSES:

You may submit comments to DOT Docket ID Number FTA-2011-0055 by any of the following methods:

Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for submitting comments.

Mail: Docket Management Facility: U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building, Ground Floor, Room W12-140, Washington, DC 20590-0001.

Hand Delivery or Courier: West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., between 9 a.m. and 5 p.m. Eastern time, Monday through Friday, except Federal holidays.

Fax: [phone].

Instructions: You must include the agency name (Federal Transit Administration) and Docket number (FTA-2011-0055) for this notice at the beginning of your comments. You should submit two copies of your comments if you submit them by mail. If you wish to receive confirmation that FTA received your comments, you must include a self-addressed stamped postcard. Note that all comments received will be posted without change to http://www.regulations.gov including any personal information provided and will be available to Internet users. You may review DOT's complete Privacy Act Statement published in the Federal Register on April 11, 2000 (65 FR 19477). Docket: For access to the docket to read background documents and comments received, go to http://www.regulations.gov at any time or to the U.S. Department of Transportation, 1200 New Jersey Ave., SE., Docket Operations, M-30, West Building Ground Floor, Room W12-140, Washington, DC 20590 between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

For program questions, Amber Ontiveros, Office of Civil Rights, Federal Transit Administration, 1200 New Jersey Ave., SE., Room E54-422, Washington, DC 20590, phone: [phone], fax: [phone], or e-mail, [e-mail]. For legal questions, Bonnie Graves, Office of Chief Counsel, same address, room E56-306, phone: [phone], or e-mail, [e-mail].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction

II. Chapter-by-Chapter Analysis

A. Chapter I—Environmental Justice and Public Transportation

B. Chapter II—Tools and Techniques for Conducting an Environmental Justice Analysis

C. Chapter III—Achieving Meaningful Public Engagement With Environmental Justice Populations

D. Chapter IV—Integrating Principles of Environmental Justice in Transportation Planning and Service Delivery

E. Chapter V—Incorporating Environmental Justice Principles Into the NEPA Process

F. Chapter VI—Understanding the Differences and Similarities Between Title VI and Environmental Justice

G. Appendix

III. Conclusion

I. Introduction

Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” was signed by President Clinton on February 11, 1994. Subsequent to issuance of the Executive Order, the U.S. Department of Transportation (DOT) issued an Order for implementing the Executive Order on environmental justice (EJ). The DOT Order (Order 5610.2, “Order to Address Environmental Justice in Minority Populations and Low-Income Populations,” 62 FR 18377, Apr. 15, 1997) describes the process the Department and its modal administrations (including FTA) will use to incorporate EJ principles into programs, policies and activities; the DOT Order does not provide guidance for FTA grantees on what is expected regarding integrating EJ principles into the public transportation decisionmaking process. FTA has not previously published separate and distinct guidance for its grantees, but instead has included environmental justice concepts in its Title VI Circular (Circular 4702.1A).

Several instances of Title VI and EJ issues raised by FTA grantees led FTA to initiate a comprehensive management review of the agency's core guidance to grantees in these and other areas of civil rights responsibilities for public transportation. Based on that review, FTA determined a need to clarify and distinguish what grantees should do to comply with Title VI regulations; and, separately, what grantees should do to facilitate FTA's implementation of Executive Order 12898.

Therefore, FTA is proposing a new Circular 4703.1, “Environmental Justice Policy Guidance for Federal Transit Administration Recipients,” in order to provide grantees with a distinct framework to assist them as they integrate principles of environmental justice into their public transportation decisionmaking processes, from planning through project development, operation and maintenance. The Circular does not contain any new requirements, policies or directives. In addition to the EJ Circular, FTA has also published, in this issue of the Federal Register, a notice of availability and request for comment for proposed revisions to FTA's Title VI Circular (Docket number FTA-2011-0054). The Title VI Circular removes most references to environmental justice in order to clarify the statutory and regulatory requirements for compliance with Title VI. FTA expects that the additional clarification provided by both documents will provide grantees the guidance they need to properly incorporate both Title VI and environmental justice into their public transportation decisionmaking. FTA encourages commenters to review both notices and provide comments on both documents.

This notice provides a summary of the proposed Circular. The Circular itself is not included in this notice; an electronic version may be found on FTA's Web site, at http://www.fta.dot.gov,, and in the docket at http://www.regulations.gov. Paper copies of the Circular may be obtained by contacting FTA's Administrative Services Help Desk, at [phone]. FTA seeks comment on the proposed Circular.

II. Chapter-by-Chapter Analysis

A. Chapter I—Environmental Justice and Public Transportation

Chapter I of the proposed Circular is an introductory chapter. It provides a brief background of the Executive Order and describes the purpose of the Circular. Importantly, this chapter also states what this Circular is not—the Circular does not contain any new requirements, policies or directions. This chapter contains the principles of environmental justice as derived from the U.S. DOT's Order on environmental justice, and describes broadly when an EJ analysis will be conducted and the elements of that analysis. Some terms necessary to explain the EJ analysis are defined; for ease of reference, FTA has defined “minority populations and/or low-income populations” as “EJ populations.” The chapter ends with a summary of what will be discussed in subsequent chapters.

B. Chapter II—Tools and Techniques for Conducting an Environmental Justice Analysis

This chapter is designed to provide tools to assist grantees as they conduct environmental justice analyses of their plans, programs, projects and activities. The chapter begins with an overview of a proposed framework for conducting an EJ analysis. As described in the framework, there are three steps for conducting an EJ analysis: (1) Determine whether there are any EJ populations potentially impacted by the activity; (2) if one or more EJ populations are present, consider the potential effects of the activity on the EJ populations; and (3) determine if any disproportionately high and adverse human health and environmental effects can be avoided, minimized or mitigated.

After describing the basic framework, the chapter then discusses in more detail some of the elements of the analysis. First are thresholds: when is an EJ population present? The Council on Environmental Quality (CEQ) issued guidance to Federal agencies on environmental justice under environmental laws (“Environmental Justice, Guidance under the National Environmental Policy Act,” Dec. 10, 1997) that suggested thresholds for minority populations; FTA proposes adapting this guidance to apply to both minority populations and low-income populations for consistency, and to apply these thresholds to all EJ analyses. FTA seeks comment on the recommended thresholds.

Next is proposed guidance on preparing a residential demographic profile. This section provides information on data sources, including how grantees can use available data. This section also discusses how to determine the geographic area for analysis, which will depend on the planning area or the impact area of the project. The next section, benefits and burdens analysis, describes how an analysis will need to be scaled depending on the level of planning (e.g., Statewide, regional, corridor-level, etc.) or the size of the project or activity. This section provides suggestions on the types of metrics to use when evaluating the benefits and burdens of public transportation projects and activities. This section also clarifies that when a plan or project will serve a predominantly minority area, it is still necessary to analyze the effects on low-income populations, since minority populations and low-income populations do not necessarily overlap. Finally, this chapter proposes a list of factors to consider when determining whether disproportionately high and adverse human health or environmental impacts exist.

C. Chapter III—Achieving Meaningful Public Engagement With Environmental Justice Populations

Chapter III proposes recommended strategies and techniques for ensuring that EJ populations are not just at the public transportation decisionmaking table, but have a voice in the decisionmaking process. This chapter first suggests identifying the members of a community, as doing so will assist grantees in developing successful communications and outreach strategies. Building relationships with community-based organizations, environmental justice networks, and others can assist grantees in developing these strategies. Traditional public outreach typically involves public hearings required by Federal, State or local law for certain transportation decisions. This chapter proposes recommendations on making this process more inclusive and user-friendly, including consideration of location, timing, format and accessibility.

This chapter also describes non-traditional outreach strategies that may result in greater participation by EJ populations. Some of these proposed strategies include informal group meetings, traditional and non-traditional media, as well as digital media. Additional strategies to increase involvement of EJ populations include direct mail campaigns, community-led events, partnerships with community-based organizations and leaders, citizen advisory committees, and public engagement teams. This chapter recognizes that public engagement is not a one-size-fits-all approach. A grantee should scale its public engagement efforts to the impacts of the plan, project or activity, as well as to the resources available to the grantee; most importantly, the grantee will determine, based on a number of factors, which public engagement strategies will likely be effective at engaging the local EJ populations. FTA seeks comment on whether there are additional non-traditional outreach strategies that should be included in this guidance.

D. Chapter IV—Integrating Principles of Environmental Justice in Transportation Planning and Service Delivery

This chapter proposes guidance on incorporating EJ principles into Statewide, metropolitan and local planning processes. Many of the strategies described in this chapter apply not only to the required Statewide and metropolitan planning processes, but also to planning activities undertaken by transit providers and other local entities with public transportation planning and service-delivery responsibilities. This chapter builds on the residential demographic profile described in Chapter II and describes specific planning tools for developing these profiles. The chapter briefly outlines the Statewide and metropolitan planning public engagement requirements in the joint FHWA/FTA planning regulations, and proposes strategies to achieve public participation in planning activities. Each plan, whether Statewide, metropolitan, or local, should encompass the goals and visions for future transportation for a region or area. This chapter explains why it is important to develop those goals and visions with input from EJ populations.

Since public transportation providers and other local entities often engage in some level of planning, this chapter addresses those planning activities, such as planning for service reductions or restructuring. This chapter provides some sample questions to guide the discussion with the public to inform planning officials on how well current operation, management, and maintenance of facilities and services serve the needs of communities, with particular attention to the parity between EJ and non-EJ populations. This chapter recommends that public transportation providers and planning officials maintain a regular and open dialogue with EJ populations regarding the effectiveness of the plan, and to identify trends in public transportation for future plans.

E. Chapter V—Incorporating Environmental Justice Principles Into the NEPA Process

This chapter provides grantees with a road map for incorporating environmental justice analysis into the National Environmental Policy Act (NEPA) process. Federal agencies are required to consider the effects of Federally-funded projects on the environment; if FTA determines there is a disproportionately high and adverse human health or environmental effect on an EJ population, the EJ analysis will be part of the NEPA document. This chapter describes how a grantee can incorporate EJ principles into its analysis of the environmental impacts of a proposed project by defining the project impact area, identifying alternatives, identifying adverse environmental effects, identifying project benefits, and identifying mitigation measures and enhancements. Finally, this chapter provides guidance related to projects that qualify as categorical exclusions and information related to NEPA-specific public engagement strategies.

F. Chapter VI—Understanding the Differences and Similarities Between Title VI and Environmental Justice

As stated previously, FTA has observed that the public, grantees, and FTA staff have sometimes considered environmental justice and Title VI to be interchangeable—they are not. This chapter outlines the source of environmental justice—Executive Order 12898—and the source of Title VI—the Civil Rights Act of 1964—and then describes, in table format, the key differences between the two. This chapter cautions recipients that an EJ analysis will not satisfy Title VI requirements, and a Title VI analysis likely will not satisfy EJ, since Title VI does not include low-income populations. Finally, this chapter includes an example of a project and describes the type of analyses required for that project.

G. Appendix—Definitions, Authorities and References

The appendix includes a comprehensive list of definitions, most of which are in either the DOT Order on environmental justice or the FHWA/FTA planning regulations, and included in this document for ease of reference. A list of authorities from which this guidance is derived is also included. This list is not meant to be exhaustive, but does include the authorities relevant to the consideration of EJ principles in the transportation context. Last is a list of references, including Federal Register notice and other citations as appropriate to enable readers to view the source documents.

III. Conclusion

Included in the proposed Circular in a few places are examples, such as the example in Chapter II regarding defining the area of analysis for a plan or project, and the example in Chapter VI regarding differences between an EJ analysis and a Title VI analysis. FTA seeks comment on whether more examples would be helpful, and if so, what types of examples would provide the most clarity for grantees.

Issued in Washington, DC this 26th day of September 2011.

Peter M. Rogoff,

Administrator.